Re: Need advice

[Bryan Carson <bryan.m.carson@xxxxxxxxx>]

Jennifer,

As the other replies have correctly stated, this is totally outside of the
scope of the TEACH Act. First, 17 U.S. Code section 110(1) only applies to
transmissions made by government agencies to their own employees, or to
transmissions made for the disabled. So that is out.

Section 110(2), more popularly known as the TEACH Act, only applies in very
specific circumstances. For section 101(2) to apply, you need to have *all*
of the following apply:

   - The copy must be legally made.
      - We don't know whether there was a license or copyright assignment.
      If so, that trumps any other part of the copyright act, so they
don't need
      to rely on anything.
      - If there was no license or assignment, the copy was *not* legally
      made.
      - If the copy was not legally made, there is nothing they can do that
      will make their use legal under any circumstances.
      - The entity must be a non-profit accredited educational institution.
   This is an institution that is accredited by one of the bodies recognized by
   the Council for Higher Education Accreditation.
      - An educational clearinghouse does not qualify.
   - The transmission must be made only students enrolled in a
   credit-bearing class that is part of the curriculum.
      - Professional development doesn't apply.
      - The transmission must be available only for the amount of time
   necessary for the intended purpose.
      - This means only for the class period it is needed. I recommend no
      more than 2 weeks total.
      - There must be technological measures that prohibit users from
   downloading or forwarding the transmission. I recommend using streaming
   audio or video.


In short, there is absolutely nothing in the copyright law that would allow
or excuse such a blatant violation of copyright law. I expect that the
copyright holders would be able to get the highest level of statutory
damages. While statutory damages range from $750 per incident to $30,000 per
incident, the highest level are usually given for deliberate infringement.

By the way, "per incident" does not mean the number of recordings they put
up. It is the number of times each recording is downloaded. So if they put
up 10 recordings, each of which was downloaded by 1,000 people, that would
be 10,000 "incidents." At the rate of $30,000 per incident, that would be a
judgment of $300 million!

Basically, these people are totally getting themselves into deep, deep
doo-doo.

Bryan

-- 
Bryan M. Carson, J.D., M.I.L.S., Ed.D.
Special Assistant to the Dean for Grants & Projects/
Coordinator of Reference & Instructional Services
Western Kentucky University Libraries
Author, "The Law of Libraries and Archives" (Scarecrow Press)

1906 College Heights Blvd. #11067
Bowling Green, Kentucky  42101-1067
Phone: 270-745-5007; Fax: 270-745-2275
bryan.carson@xxxxxxx | bryan.m.carson@xxxxxxxxx

All original content copyright Bryan M. Carson


On Thu, Jul 7, 2011 at 10:30 AM, Randal Nieuwsma <Nieuwr@xxxxxxxxxx> wrote:

> Jennifer,
>  SubSections 110 (1) and (2) address showing copyrighted media in
> face-to-face
> classroom instruction and in online instruction. Further, (11) clarifies
> some
> terms used in (2). In laymans terms, they say that the media must be used
> by
> students and teachers in a real school, and not just in an activity by
> anybody
> claiming that it is or could be educational (a 'learning event').
>  How are you drawn into this? It seems like the copyright owner of the
> distributed presentations should be objecting.
> Randy
>
> >>> "Barrera, Ms. Jennifer" <BARRERA@xxxxxxxxxxxx> 7/7/2011 9:48 AM >>>
> Ok, here is the scenario that I'm dealing with...
>
> An educational clearing house (http://www.acefacilities.org
> )<http://www.acefacilities.org%20)> funded by the United States Department
> of
> Education is wanting to provide learning events (webinars, podcasts, etc.)
> open to the public.
>
> My understanding is that they are attending the webinar, recording it, and
> then posting it for access to the public via their own web conference
> service.
> The podcasts are being downloaded to their server to be posted for the
> public.
>
> My first reaction was... who gave you permission to post the webinars,
> podcasts? These are copyright protected.
> This group feels however that they are covered under TEACH 110(2) and 17
> USC
> 110(1) because they are calling it an online learning event. I don't think
> that they are covered under these exemptions. Am I wrong??
>
> Need advice!
>
>
> Jennifer Barrera
> Access Services Librarian
> Dick Smith Library
> Tarleton State University
> Stephenville, TX 76402
> (254)968-9248